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tified that they were so closed just be- seen until after the loss was discovered,
fore entering the station, and that while The property was in a valise next to the
there they stood on the platform near the aisle, on the end of the seat. The win-
car. Plaintiff stepped out of the car, leav- dow was open at the passenger's re-
ing the valise near an open window at quest, and the valise was stolen while
which two passengers sat. They moved she was asleep. The porter, earlier in
away while he was gone, without closing the evening, had seen her take money
the window, and soon after the train out of a similar valise, and, after the
started the loss was discovered. Held, that loss was discovered, he was twice sent



3231



PALACE CARS AND SLEEPING CAR COMPANIES.



3585-3586



passenger, being told that he would have to change cars on account of a wreck,
started forward with all the other passengers, but, upon missing his pocket-
book, returned to his berth, where he had left it ; that no one was in the car
after the passenger left, except the conductor, porter, and a train brakeman
who passed through without stopping; and that the conductor, porter, and pas-
sengers were searched, but the pocketbook could not be found, a verdict against
the sleeping car company was held to be upon sufficient evidence.^'^

§ 3586. Instructions. — There should be some evidence upon which to base
an instruction.^'* And it is proper to refuse a requested charge which does not
conform to the evidence. ^^ It is improper to give an instruction imposing a
higher degree of care on defendant than the law requires.'^" In an action for



for by the conductor, but the porter re-
ported that he was dressing and he did
not come. The porter established a good
character for honesty. Held, insufficient
to show that the porter took the prop-
erty, so as to render the company liable.
Pullman Sleeping Car Co. v. Hatch, 30
Tex. Civ. App. 303, 70 S. W. 771.

67. Pullman Palace Car Co. v. Mat-
thews, 74 Tex. 654, 12 S. \V. 744, 15 Am.
St. Rep. S73.

68. Instructions — Necessity for evi-
dence. — Plaintiff and his companion
were in the berth of a sleeping car, over
which was suspended a hammock, in
which was the companion's coat and
plaintiff's vest. The companion testified
that he got up in the night and took his
coat, leaving- plaintiff's vest. Plaintiff tes-
tified that, when he awoke, his vest was
on the berth, on the outer edge of the
cover, and that a pocketbook which was
in his vest pocket was missing. Held,
in an action against the sleeping car
company, that there was no evidence on
which to predicate an instruction to find
for the company if plaintiff's companion
was so handling the vest as to cause the
pocketbook to fall on the floor. Pullman
Palace Car Co. v. Adams, 34 So. 921,120
Ala. 581, 45 L. R. A. 767, 74 Am. St.
Rep. 53.

Evidence supporting instruction. — In
an action against a sleeping car company
and a railway company by a passenger
compelled, before reachinjg her destina-
tion, to leave the sleeper in which she had
engaged a berth, and to complete the
journey in a chair car, a charge that nei-
ther of defendants had the right to ten-
der to pay plaintiff back the amount paid
by her for the privilege of being trans-
ported in the sleeping car, and then re-
quire her against her consent to transfer
from the sleeper i<> the chair car, was not
objectionable on the ground that there
was no evidence that the sleeping car
company ever tendered back the money;
the evidence showing that such money
was tendered l)ack by the train conductor
in the presence of the sleeping car con-
ductor, and that the two conductors
were acting in concert. Pullman Palace

4 Car— 9



Car Co. V. Hocker, 41 Tex. Civ. App. 607,
93 8. W. 1009.

69. Before reaching her destination,
plaintiff' was compelled to leave the
sleeper in which she had engaged trans-
portation, and complete the journey in
a chair car. In an action against the rail-
way company and the sleeping car com-
pany operating the sleeper, the evidence
showed that the railway company desired
the sleeper for the accommodation of
passengers on one of its trains bound in
the opposite direction, the sleeper on
which had become disabled; that the
train conductor and the sleeping car con-
ductor insisted for three-quarters of an
hour or more on plaintiff's leaving the
sleeper and entering the chair car, using
arguments and threats beyond the limit
of persuasion, attracting the attention of
others to plaintiff, who was thereby
greatly mortified. Under the evidence,
the refusal of a special charge requested
by the railway company, that if, by the
exigencies of the case, through no fault
of its own, it approached plaintiff and
undertook to get her to change from the
sleeper to a chair car, and by reason of
such efforts passengers and other per-
sons looked at her, then plaintiff could
not recover for mental suffering, was not
error. Pullman Palace Car Co. v.
Hocker, 41 Tex. Civ. App. 607, 93 S. W.
1009.

70. Degree of care required. — In an ac-
tion for loss of a sleeping car passenger's
effects by larceny from the car window,
a charge that defendant was not only
bound to furnish plaintiff a berth for his
accommodation, but to keep watch and
take reasonable care that he suffered no
loss, and if plaintiff's loss was occasioned
by want of such care, and his own neg-
ligence did not contribute to it, he was
entitled to recover, was improper as im-
posing an absolute duty on the sleeping
car company to maintain a watch against
theft from the outside; whether such
watch was essential to the exercise of
oidinary care being for the jury. Pull-
man Co. z: Schobcr (Tex. Civ. App.), 149
S. W. 236.



§ 3586 CARRIERS. 3236

ejecting a passenger who attempted to take improper baggage into the car, an
instruction which ignored his right to opportunity to check the baggage, and
which was based on the theory that he must have shown himself to have been
actually within the car instead of in the vestibule, was properly refused. '''^ It
is error to charge that plaintiff can not recover for property stolen in a sleeping
car if the property was stolen while the porter was awake, as the porter might
have been guilty of negligence other than that of sleeping.'^- And it is error to
charge that plaintiff' can not recover if he was guilty of contributory negligence,
without hypothesizing that the loss of the property sued for was caused by such,
contributory negligence.'^ ^

Instruction Ignoring Evidence. — In an action against a sleeping car company
for property stolen in the car, it is improper to charge that the company was not
negligent after reaching a certain station, though such is the fact, and to ignore
evidence of negligence before the station was reached.'^'*

Use of the Word "Transportation" in Instructions. — In an action against
a sleeping car company and a railway company by a passenger compelled to
leave a sleeper, in which she had engaged a berth to her point of destination,
and complete the journey in a chair car, the use of the term "transportation" in an
instruction that it was the duty of the sleeping car company to furnish plaintiff
transportation in the sleeper to the point of destination was not misleading;
plaintiff's contract with the company being so conditioned, and there being no
question raised that she was not transported to such destination."-*

A charge that the jury must find according to the preponderance of
the evidence is erroneous, for the reason that preponderance may not con-
vince the minds of the jury."*^

Presumption of Negligence. — An instruction in an action against a sleeping
car company for loss of personal effects, that the action was based on negli-
gence, that the burden was on plaintiff' to prove his case by a preponderance of
the evidence, and that it was the duty of the company to use reasonable care to
guard its passengers from loss of personal effects from theft, and if, through
a want of such care, plaintiff''s personal eff'ects were lost or stolen, and they
were such as would reasonably be supposed to be carried by him, the company
would be liable; otherwise, not, is not objectionable as authorizing the jury to
infer negligence from mere proof of loss.'''^

Harmless Error. — A sleeping car company, sued as a codefendant with a
railway company for injuries suffered through the negligence of defendant's
employees, can not complain that an instruction correctly stating the diligence
required of the sleeping car company imposed a lower burden upon the railway
company than the law would exact. "^

Improper Refusal to Charge. — Where plaintiff's eff'ects were stolen out of
a sleeping car berth through an open window it was improper to refuse an in-
struction requested by the defendant, which would have told the jury that if
they believed from the evidence that a man stood upon the rods of the outside
of the car, and reached through an open window into the berth and snatched
plaintiff's property, and that at said time an employee of defendant was on

71. Instruction ignoring right of plain- 75. Use of the word "transportation" in

tiff.— PuUman Co. v. Custer (Tex. Civ. instruction.— PuHman Palace Car Co. v.

App.), 140 S. W. 847. Hocker, 41 Tex. Civ. App. 607, 93 S. W.

72. Pullman Palace Car Co. v. Adams, ;|oo9

120 Ala. 581 24 So 921, 45 L. R. A. 767, ^g; p^i,^^^^_„ p^,^^^ Car Co. v. Adams,

^,o "^ 1, ^^ ■? n n ^A 120 Ala. 581, 24 So. 921, 74 Am. St. Rep.

73. Pullman Palace Car Co. v. Adams, cq aj; T T? A '~i\'~

120 Ala. 581. 24 So. 921. 45 L. R. A. 767, \„ ^^^ ' z v n a

74 Am St Rep 53 ^^' Presumption of negligence. — God-

Ignoring evidence of negligence.— ^rey v. Pnlhnan Co., 87 S. C. :;61. 69 S. E.



74.



666.



Pullman Palace Car Co. t'. Adams, 120

Ala. 581. 24 So. 921, 45 L. R. A. 767, 74 78. Harmless error. — St. Louis, etc., R.

Am. St. Rep. 53. Co. v. Hatch, 116 Tenn. 580, 94 S. W. 671.



Z2Z7



PALACE CARS AND SLEEPING CAR COMPANIES. §§ 3586-3587



watch inside of said car, and that under the circumstances this was reasonable
care and dihgence on the part of defendant for the protection of property of
those riding in said car, to return a verdict for defendant.''*

§ 3 587. Questions for Court or Jury. — It is the province of the jury to
determine the weight of e\idence and the credil)ihty of the witnesses, and where
'.he evidence conduces in any degree to establish a right of recovery it is error
to give a peremptory instruction for defendant, ^'^ grant a nonsuit,*^^ or sustain
a demurrer to the evidence.'^- So, in an action against a sleeping car conii)any
by a passenger for the recovery for the loss of his personal belongings while a
passenger, it is for the jury to determine whether plaintiff's evidence, which
tended to prove that the goods were stolen by the defendant's porter, was over-
come by defendant's evidence. '^"^ But where, in an action against a sleeping
car company for. the value of a stolen diamond, it appeared that the plaintiff's
acts gave opportunity for the theft, and there was no evidence of negligence by
the defendant, the court properly instructed a verdict for defendant.^-* In the
appended note will be found instances where the evidence was held sufffcient
for submission to the jur}'.^°



79. Improper refusal to charge. — Pull-
man Co. V. Schober (Tex. Civ. App.), 149
S. W. 236.

SO. Questions for jury in general — Per-
emptory instruction for defendant. — Jen-
kins v. Louisville, elc, R. Co., 104 Ky.
673, 20 Ky. L. Rep. 865, 47 S. W. 761.

"Such a charge should never be given
where tliere is any testimony whatever
upon which a vetdict can be predicated.
Stevenson v. Pullman Palace Car Co.
(Tex. Civ. App.), 26 S. W. 112." Hatch
V. Pullman Sleeping Car Co. (Tex. Civ.
App.), 84 S. W. 246, wherein evidence ex-
amined, and whether baggage was pur-
loined by defendant's servants held a
question for the jury.

Where the evidence tended to show
that plaintiff, while a passenger in a
sleeping car, was injured by the falling
of the partition plank wdiich separated
the berth in which he was sitting from
that in front of his, it was error to give a
peremptory instruction for defendants,
railroad and sleeping car companies,
though the porter testified, without con-
tradiction, that he had securely fastened
the plank, and the evidence showed that
it could not fall when thus fastened, there
being no explanation as to how it fell
out of place. Jenkins v. Louisville, etc.,
R. Co., 47 S. W. 761, 20 Ky. L. Rep. 86.'),
101 Ky. '•.::;.

81. Nonsuit. — In an action against a
sleeping car company it appeared that
plaintiff, on entering defendant's sleep-
ing car, was told by the conductor that
the car would go ihrougli to his destina-
ti(Mi. and tliat he might go to bed, that
on retiring he deposited his money in an
envelope, put the envelope in his vest
pocket, and placed the vest under his pil-
low; that in tlie midflle of the night, Ijc-
forc reaching his destination, he was
suddenly aroused and told to hurry to
get into the next car, as tiie car which he
was in was to be taken no further, where-



upon he rose hurriedly and carried his
clothes to the next car; and that he dis-
covered the loss of the envelope an hour
later, and duly notified the company.
Held, that it was error to grant a non-
suit. Kates V. Pullman's Palace Car Co.,
95 Ga. 810, 23 S. E. 186, 2 Am. & Eng. R.
Cas., N. S., 480.

82. Demurrer to evidence. — Morrow v.
Pullman Palace Car Co., 98 Mo. App.
351, 73 S. W. 281.

83. Morrow v. Pidlman Palace Car Co.,
73 S. W. 281, 98 Mo. App. 351.

84. Myers v. Pullman Co., 149 S. W.
1002, 149 Ky. 776, 41 L. R. A., N. S., 799.

85. Instances of evidence held suffi-
cient to go to jury. — In an action by a
passenger against a sleeping car com-
pany for damages for being ejected from
a sleeping car, there was evidence tend-
ing to show that defendant sold plaintiff
accommodations between two points in
a car over a route not wholly covered by
her railroad tickets, and that the con-
ductor put her off without her consent
before reaching the point where the rail-
way lines diverged. Held, that such evi-
dence was sufficient to warrant the court
in submitting the case to the jury. Pull-
man Co. V. Czintz, 157 Fed. 752.

Plaintiff', having purchased a ticket en-
titling him to a drawing room in a sleep-
ing car, was informed by a porter in
charge of ilie car that baggage could be
safely left in the drawing room, to which
the porter and conductor iiad keys. Plain-
tiff, on leaving tlie car, notified the por-
ter that lie Iiad left his baggage there,
and re(|uested the porter to care for it.
It was not sliown that the porter locked
the door of the drawing room, but it was
shown that the front door of tlie car was
unlocked at or l)efore the train reached a
certain station, prior to the return of
l)laiMtiff, wlien tiic projx'rty had disap-
pe.ircd. Ileld, in an action for tlic value
of llie properly, tliat there was suflicient



§ 3587



CARRIERS.



3238



Negligence and Contributory Negligence. — In an action against a sleep-
ing car company the question of the defendant's neghgence is generally for the
jury to determine. ^*^ Unless the law has declared certain acts or omissions to be
negligence per se, the existence or nonexistence of it is a question of fact for
the jury to determine, and not a question of law for the court. ^" It is held for
the jury to determine whether the defendant has been guilty of negligence in
not properly watching or guarding its car,^^ in opening a car window at a



evidence of negligence on the part of the
car company to raise a question of fact
for the jury. Arthur ?'. PuUman Co., 88
N. Y. S. 981, 44 Misc. Rep. 229.

Where the undisputed evidence was
that the entire force employed on a
sleeper, which ran over an important
thoroughfare, and made frequent stops,
was one man, who acted as conductor,
as porter, and was also engaged, for his
own profit, in blackening the shoes of the
passengers, and that this man's closet
was at one end of the car from which a
full view of the main aisle could not be
had, the evidence was sufficient in the
absence of any explanation on defend-
ant's part, to require the question
whether the loss was caascd by its neg-
ligence to be submitted to the jury. Car-
penter V. New York, etc., R. Co., 124 N.
Y. 53, 26 N. E. 277, 21 Am. St. Rep. 644,
11 L. R. A. 759, 47 Am. & Eng. R. Cas.
421.

Plaintiff, having a railroad coupon
ticket for passage from New Orleans to
New York over connecting lines of road,
on application to defendant's sleeping
car company, and on showing his ticket,
was sold a berth in a sleeping car from
New Orleans to Jersey City. From
Washington to Jersey City, such car was
run over a line different from that named
in plaintiff's ticket, and, on his refusing
to pay fare, he was ejected by the em-
ployees of the railroad company. Held
that, there being evidence to warrant a
finding that plaintiff was not chargeable
with notice, before leaving Washington,
that the car would not go over the road
named in his ticket, such question was
properly submitted to the jury under an
instruction which, in case of such find-
ing, permitted a recovery, not only for
the increased expense to which plaintiff
w-as subjected, but also compensation for
the inconvenience and loss of time, and
for the indignity of a public expulsion
from the car. Pullman's Palace Car Co.
V. King, 99 Fed. 380, 39 C. C. A. 573.

86. Negligence. — Morrow v. Pullman
Palace Car Co., 98 Mo. App. 351, 73 S. W.
281; Arthur v. Pullman Co., 88 N. Y. S.
981, 44 Misc. Rep. 229.

Plaintiff, w^hose leg had been recently
broken, was riding as a passenger in a
sleeping car operated by defendant, and
while sitting on the side of his berth
early in the morning, when the car was
standing at a station, some person, who
was identified by plaintiff as the porter



of the next car, in walking through the
aisle, stepped upon or fell against plain-
tiff's leg, and it was rebroken. The por-
ters denied knowledge of any such
occurrence. Held, that the question of
defendant's negligence was properly
submitted to the jury. Pullman Co. v.
Haight, 151 Fed. 1009, 81 C. C. A. 287.

Trial judge sitting without jury. —
AA'here a tray was upset over the cloth-
ing of a passenger in a dining car by an-
other passenger as he arose from his
seat, and the waiter who was carrying
the tray admitted that if he had carried
the tray at a greater height than he did
the passenger would not have collided
with it, and the proof showed that the
car was very crowded, whether the
waiter was guilty of negligence was a
question of fact for the trial judge sitting
without a jury. Cassasa v. New York,
etc., R. Co., 95 N. Y. S. 648, 109 App.
Div. 170.

87. Dargan v. Pullman Palace Car Co.,
2 Texas App. Civ. Cas., § 691, 26 Am. &
Eng. R. Cas. 149.

88. Failure to properly guard car. — The
fact that the porter of a sleeping car
running from St. Louis to Louisville,
who was the sole person charged with
the duty of keeping a lookout in the car,
had, on the morning of the day the car
left St. Louis, arrived in that city after
a long and fatiguing passage from El
Paso, Tex., coupled with the fact that
twice during the night he voluntarily ab-
sented himself from the car for at least
20 minutes each time, conduced to show
negligence on the part of the carrier, and
authorized the submission of that ques-
tion to the jury. Pullman Palace Car Co.
V. Hunter, 54 S. W. 845, 21 Ky. L. Rep.
1248, 107 Ky. 519, 47 L. R. A. 286.

In an action against a sleeping car
company to recover money stolen from
a passenger's berth while he was asleep,
it appeared that the porter w^as found
asleep in the morning, and that he had
been on duty for 36 hours continuously,
and that another passenger lost a sum of
money in a similar manner, and at the
same time. Held, that it was for the
jury to determine whether the company
was negligent in guarding its passengers.
Lewis V. New York Sleeping Car Co.,
143 Mass. 267, 9 N. E. 615, 58 Am. Rep.
135, 28 Am. & Eng. R. Cas. 148.

In an action for money alleged to have
been stolen from a berth in defendant's
sleeping car, it appeared that the only



3239



PALACE CARS AND SLEEPING CAR COMPANIES.



§ 3587



station,*^ or in failing to properly light the aisle and toilet room of a car.^^ Con-
tributor}- negligence is a mixed question of law and fact, and is properly sub-
mitted to the jury, under proper instructions.^^ Thus ' whether or not a pas-
senger is guilty of contributory negligence in entering a dark toilet room,^2 qj.
in stumbling over a suitcase negligently left in the aisle of a dimly-lighted car,^^
is a question for the jury.

Reasonableness of Regulations. — Whether a rule of a sleeping car com-
pany excluding persons known to be afflicted with any contagious or infectious
disease or to be insane is reasonable, is a question for the court."* And when
the facts are undisputed, it is the province of the court to declare a regulation re-
quiring passengers to pay extra for riding in chair cars reasonable."^

Whether an Article Was Baggage. — Where, in an action against a sleep-
ing car company for loss of a diamond ring belonging to plaintiff's wife, by



person in charge of the car was the por-
ter, who blacked boots during the night,
the utensils for that purpose being kept
in a closet remote from the aisle. It did
not appear where the porter was sta-
tioned during the night. Held, that de-
fendant's negligence in not properly-
watching the car was a question for the
iury. Carpenter v. New York, etc., R.
Co. (N. Y."). 14 Daly 457, afifirmed in 124
X. Y. .53. 26 N. E. 277, 21 Am. St. Rep.
644, n L. R. A. 759, 47 Am. & Eng. R.
Cas. 421.

Where the evidence is such as to per-
mit the inference that but one man was
employed by the defendant in the car
where the theft was committed, and that
he was charged with the performance of
duties, which might interrupt his _watch-
ing the passengers, it is for the jury to
decide whether or not the defendant was
guiltv of negligence. Carpenter v. New
York, etc., R. Co., 15 N. Y. St. Rep. 34.5.

Tn an action for loss of a passenger's
eflfects from a sleeping car, evidence that
while the train was stopping at a station
at night both the conductor and porter
were out on the platform at the same
time, leaving both doors unlocked, and no
one to keep watch, required submission
of the issue of the negligence of the com-
pany's servants to the jurv. Godfrey v.
Pullman Co., 60 S. E. 666. 87 S. C. 36t.

89. Opening window. — The porter of
a sleeping car, half an hour before
starting time, and after putting a pas-
senger's traveling bag in the car on a
seat oppo-^ite the side on which passen-
gers were received, opened the window
opposite the seat, without re(|uest, in vio-
lation of a rule of the company. The pas-
senger was about to sit in the seat when
the window was opened, and the porter
had no reason to i)clicve that he would
leave it, but the passenger did so, and
the baggage was stolen. Held a ques-
tion for the jury whctlicr tlic oi)fning f)f
the winriow was ncgligciue. Dawley v.
Wagner F'alacc Car Co., 47 X. E. 1024,
160 Mass. .'{l.->.

90. Failure to properly light car. — Val-
entine V. .Xfirtlicm i'ac. \<. Co. (VVasli.),
126 I'ac. 00.



91. Contributory negligence. — A pas-
senger's baggage was placed by the por-
ter on a seat of a sleeping car near an
open window, while the car was stand-
ing in a depot. The passenger left the
car, but his wife remained within, walked
up and down the aisle, went out on the
platform, and then sat down in the sec-
tion forward of her ov/n, and facing it.
The baggage was stolen. Held, in an ac-
tion for the loss, that it was a question
for the jury whether either the passen-
ger or his wife were negligent. Dawley
V. Wagner Palace Car Co., 47 N. E. 1024,
169 ?klass. 315. See Pullman Co. v. Scho-
ber (Tex. Civ. App.), 149 S. W. 236.

Plaintiff, whose leg had been recently
broken, was riding as a passenger in a
sleeping car operated by defendant, and
while sitting on the side of his berth
early in the morning, when the car was
standing at a station, some person, who
was identified by plaintiflf as the porter
of the next car, in walking through the
aisle, stenped upon or fell against plain-
tiff's leg, and it was rcbroken. The por-
ters denied knowledge of any such oc-



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